In the 1928 case of Roe v. Kansas ex rel. Smith, Attorney General, et al., the United States Supreme Court dealt with a dispute over oil and gas leases on Osage Indian lands in Oklahoma. The state of Kansas had sued on behalf of its citizens who held these leases, arguing that they were being unfairly taxed by Oklahoma authorities despite federal laws prohibiting such taxation. The court ruled against Kansas, stating that while Congress did have exclusive jurisdiction over Indian affairs, it could still allow states to tax non-Indian activities occurring on reservation land if it chose to do so. In this instance, the court found no clear indication from Congress that it intended to prevent Oklahoma from taxing these particular leaseholders.

The dissenting opinion in the case of Roe v. Kansas ex rel. Smith, Attorney General, et al., 1928 argued that the majority's decision to uphold a state law prohibiting the teaching of evolution was an overreach and violation of individual rights. The dissenters believed that such laws infringed upon academic freedom and personal liberties protected by the Constitution, including free speech and religious beliefs. They contended that it is not within a state's power to dictate what can or cannot be taught in schools based on religious grounds as this violates separation between church and state principles enshrined in First Amendment jurisprudence. Furthermore, they expressed concern about potential chilling effects on scientific research and education if states were allowed to ban teachings deemed controversial or offensive by some groups.